Dear Google: Public domain compositions exist

Jun 28, 2021

Since YouTube is the dominant video platform, a lot has already been said about its copyright claims system. Most of that has had to do with questions about what constitutes fair use (in movie reviews, for instance). Google’s AI is mostly trained to recognize the presence or non-presence of content in your video, not whether or not your use is fair (something that varies between jurisdictions, by the way). But what I’m going to discuss here is much more clear-cut: the performance of public domain music.

While there’s certainly artistic merit in new compositions, there are also a lot of us who enjoy performing existing classical music. Luckily for us, there’s lots of that in the public domain. The boundaries of what’s fallen out of copyright depend on the country, but virtually everything published in the nineteenth century and earlier is free for everyone to use.

Unfortunately, Google seems not to be aware of this fact. Recently, I uploaded a production of Gilbert and Sullivan’s Trial by Jury to YouTube, and it instantly got hit by four copyright claims. I went to go contest them — something I’ve done before for this kind of thing, and always with success for public domain music — but that really shouldn’t be necessary. Trial was first published in the 1870s. Gilbert and Sullivan died in 1911 and 1900, respectively. As far as I know, this opera isn’t under copyright anywhere in the world.

Of course, while the music is definitely in the public domain, new recordings can definitely be under copyright. If I’d uploaded a copyrighted D’Oyly Carte Company performance of Trial, I’d expect a copyright claim — it’d be totally justified. But that’s not what I did! In fact, the recording I uploaded was an entirely new one (in which I was myself involved). Maybe it got confused with another performance? Nope! YouTube flagged four segments as using the melody of "copyrighted" songs — but all the compositions on which I had supposedly infringed were just numbers from Trial!

So the AI is good. It correctly identified what I was using, and that I’d uploaded a new recording using a melodies from Google’s database of copyrighted compositions. The only problem is that these melodies aren’t copyrighted.

Could Google fix this? Probably. One way to do this could be by producing a database of public domain compositions (a sort of public domain flagger to face off against the copyright flagger), but this would be a difficult undertaking. Much simpler would be requiring some minimal information from contributors to the database of copyrighted compositions, such as composer, librettist (when applicable), publication date and so on.

Of course, Google isn’t likely to do anything of the sort, since they have no real reason to treat performers of public domain music fairly: we can’t sue just because we got a copyright claim against our video, while publishers can sue for copyright infringement (and fair enough, when they actually hold a copyright). So, until the 30-day appeal period (appeals are to the claimant!) expires, some copyright troll is making money off of ads running on our new production of a public domain opera. And even more copyright trolls are definitely out there making what is likely a substantial amount of money off of stuff they definitely don’t own from people who don’t contest the claims (or don’t know how to). What a shame.